ALCANSO BARRETO Vs. CAMILO LOURENCO

JUDGEMENT

(1.) THE plaintiffs in S.C.S. No.159/1987 have filed this Second Appeal. The parties hereto shall be referred to in the names as they appear in the cause title of the suit.

(2.) BRIEFLY stated, the plaintiffs were residing in the property of the defendants and the defendants having filed a suit for demolition of extensions made by the plaintiffs, the said Suit No.166/76 was decreed, and while execution proceedings were pending, the plaintiffs and the defendants entered into an agreement of sale dated 21.7.1979. The said agreement was subsequently extended. The said agreement was particularly entered into between the defendants and Smt. Rosa Caetana Carneiroe Barreto ,the late mother of plaintiff No.1. As per the said agreement the plaintiffs (prospective / purchaser - the said Smt. Rosa) was to pay to the prospective vendors (the Defendants) the balance amount of sale price of Rs.33,000.00 only on or before 21.7.1982 and the said Smt. Rosa was to inform and intimate the prospective vendors the date on which she would be ready to make payment of balance amount of sale price and thereafter the prospective vendors would inform and intimate the said prospective purchaser the time, the date and the place of executing the sale deed. The defendants sent a letter to the said Smt. Rosa dated 19.11.83 (the receipt of which is the main bone of contention between the parties). The said letter was sent through Advocate Shri Joao Filipe Borges and by virtue of the said letter the defendants brought to the notice of the said Smt. Rosa that she had not cared to pay the balance of the purchase price and get the sale deed executed in her favour and inspite of that the defendants were willing to give her an opportunity to get the sale deed executed in her favour on payment of the balance of Rs.33,000.00. The said Smt. Rosa was therefore called upon by virtue of the said letter to make the payment within ten days from the receipt of the notice (dated 19.11.1983) and to come along with necessary stamp duty to enable the defendants to execute the sale deed. The said Smt. Rosa was further informed that the defendants would treat the agreement as rescinded in case she failed to comply with the notice further informing her that she would also forfeit a sum of Rs.5000.00 paid by her.

(3.) THE defendants (defendant No.5) sent a reply stating that the plaintiffs' letter dated 31.7.1987 was only a mischievous justification for the faults on their side. The defendants further stated that only because they had no money that the sale deed was not executed in due time and that they had written a letter dated 19.11.83 to the said Smt. Rosa through their advocate which was not claimed, stating that they could not remain for long without executing the sale deed though the delay was provoked on their side. The defendants nevertheless informed the plaintiffs that the price of the property had increased considerably and the owners of the property, though not bound to execute the sale deed, with the right to forfeit the money received in advance, they were prepared to execute the sale deed in case they agreed to pay Rs.40.00 per sq.m. for an area of 300 sq.m. and Rs.100.00 per sq.m. for the remaining area of the property and in case the proposal was agreeable to them, they should reply within eight days from the receipt of the said letter, failing which the original agreement for sale would be considered inoperative and the advance money received would be forfeited.